Gilbourne v. Oregon Short Line Railroad

McCARTY, J. (after stating the facts as above). During the examination in chief of witness Kelley, the engine foreman of the Rio Grande switching crew on the night in question, he was shown the frame of a hand lantern that was crushed and broken, and was asked if it was the same style of lantern as the one he claimed was on the rear of the Rio Grande switch engine at the time of the collision, and he answered that it was. Timely objections were made to this evidence by the appellant, on the ground that it was incompetent and immaterial for the reason that the lantern exhibited to the witness was not shown to be the same lantern that was on the rear of the Rio Grande engine at the time •of the accident. The record shows that the lantern which plaintiff claimed was on the rear of the engine in question — 87 — at tbe time of the accident could not be found. No claim was made that the lantern exhibited to the witness was the same lantern that was broken in the collision, nor was it exhibited and the evidence complained of introduced for the purpose of conveying the impression that.it was the same lantern. The only purpose for which the lantern was exhibited, as shown by the record, was to illustrate and show to the jury the kind of lantern which plaintiff claimed was on the rear of his engine at the time of the accident. This, 1 under the circumstances, we think he had a right to do. That illustrations of this kind may be made in the trial of a case is too well settled to admit of serious discussion. (17 Cyc. 293.) Moreover, the evidence, without conflict, shows that a red lantern was on the rear of the engine mentioned at the time of the collision. The only conflict in the evidence relating to the lantern was as to whether it was burning and reflecting light at the time of and just prior to the accident. Therefore we fail to see in 2 what way the evidence complained of was prejudicial to appellant, even though it should be conceded, for the sake of argument, that its admission, as an abstract proposition of law, was technical error. When the evidence was all in and both sides had rested, appellant asked for a peremptory instruction directing a verdict in its favor. The refusal of the court to so instruct the jury is assigned as error. The contention made in support of this assignment is that respondent as a matter of law was guilty of contributory negligence in substituting for and using upon the rear end of the engine in question a red light in lieu of the white lights required by the rales of both the Bio Grande and Short Line Companies. The undisputed evidence shows that for several years preceding the collision the switch engines used by the Bio Grande Company in its yards and in the transferring of cars from its own yards to the yards of the Short Line Company were usually .equipped .on the rear end with red lights, the same as the engine in question was equipped on the night of the accident. E. W. •Bywater, who, for several years next preceding the collision, — 88 — was employed by the Short Line Company in its yards as fireman and engineer, was called as a witness, and, in answer to the following questions asked by counsel for appellant, Short Line Company, testified as follows: “Q. You say you had been in these yards for several years? A. Yes, sir. Q. You say you saw Rio Grande switch engines over there at various times ? A. Yes, sir. Q. Before this ? A. Yes, sir. Q. Had you seen them at nights ? A. Yes, sir. Q. Did you observe the lights they carried usually ? A. Whenever I could see them. Q¡. Whenever you saw them, and could observe the lights on the rear end, what were the lights? A. As a rule they carried a red light. Q. Red light or headlight ? A. I never saw an engine before the accident with a headlight. Q. Did you see them with white lights? A. No, sir. Q. Never saw them with white lights ? A. No, sir.” It might well be inferred from this and other evidence in the record of the same import that both the Rio Grande and Short Line Companies at least tacitly sanctioned the violation of the rule requiring switch engines to be equipped on the rear end with 3 a headlight or two white lights. Therefore the infraction of this rule by the respondent on the occasion in question was not negligence per se, as counsel for appellant seem to contend. (Boyle v. Union Pac. R. R. Co., 25 Utah 421, 71 Pac. 988; 1 Labatt, Master and servant, section 366; 26 Cyc. 1269, 1270.) And upon this issue the court instructed the jury as follows: “(9) You are instructed that it is negligence on the part of a servant to disregard or fail to observe the rules of his master or employer, designed and intended to govern his conduct while employed in the duties that he is engaged to perform; and, if his disregard or violation of any such rules proximately contribute to any injury complained of, he cannot recover. And in this case you are further instructed that if you find that plaintiff did violate any of the rules of the Rio Grande Western Railway Company, and that such neglect upon his part proximately contributed to the accident, then, under such circumstances, his negligence could be taken advantage of as a defense by the — 89 — Oregon Short Line in this action, and would be 4, 5 a complete bar to his right to recover, and under such circumstances your verdict should be for the defendant.”' It will thus be observed that the question of respondent’s alleged contributory negligence in failing to equip the engine he was operating on the evening of the accident with the hind of lights required by the rules of the company was-fully submitted to the jury. Appellant further contends that the court erred in permitting respondent to introduce evidence tending to show a waiver of the rules referred to on the part of the Bio Grande Company, for the reason that there was no issue presented' regarding the abrogation, modification, or waiver of the rules by the company. It appears that the transfer of cars from the yards of one company to the yards of the other was carried on pursuant to certain rules and regulations known as the “Standard Bules and Begulations of the American Bail-way Association.” These rules and regulations, so far as material here, were the same as the rules and regulations under consideration. In its answer, appellant, among other things, alleged, in substance, quoting from the statement of the issues contained in its printed brief, “that by these rules it was the duty of the Bio Grande Company to equip its-locomotives used in this transfer service with a headlight on the rear, as well as on the front, or, in lieu of a headlight on the rear, to equip such locomotive with two white lights on the rear thereof; . . . that it was also the duty of said Bio Grande Company to require its employees to keep a lookout in handling these locomotives, and protect themselves against collisions; that it had negligently failed to do-these things, but, on the contrary, in violation of the rules-governing the operation in question, sent said locomotive-into the railroad yards of the defendant not equipped with such lights, and permitted its. employees to stop such locomotives and remain upon a certain main line in such yards-without displaying any lights on the rear thereof.” Nowhere in its answer does the appellant allege that either respondent, the engine foreman, or any other member of the90 Bio Grande switching crew was guilty of negligence because of any violation of these rules, or «because of the violation of the rules of the Bio Grande Company, which, so far as materia] here, were the same as the “Standard Bules and Begulations of the American Kailway Association.” But, on the contrary, appellant specifically alleges that the Bio Grande Company “sent the said locomotive into the yards of the defendant not equipped with such lights,” etc. The only allegation in the answer charging negligence on the part of respondent is the general allegation “that the injuries received by plaintiff, and the damages resulting therefrom, if any, were caused by an accident which resulted from the wrongful and negligent acts, conduct, and omissions of the plaintiff.” Under the issues tendered by these allegations of the answer, appellant was permitted to introduce in evidence the rules hereinbefore referred to of the Bio Grande and Short Line Companies, and to show, by cross-examination of respondent’s witnesses, that the rules and regulations requiring that the switch engines should be equipped with certain kinds of lights were not observed and followed by respondent on the evening of the accident. Appellant, having thus opened up the question which it claims was outside of the issues, cannot be heard to complain because the court permitted respondent, on redirect examination 6 of his witnesses, and by the introducing of other evidence, to show that the Bio Grande Company had habitually and for a long period of time tacitly sanctioned the violation of these rules. And, furthermore, the court, by giving the following instruction, withdrew the question from the jury, and they were in effect told not to consider it: “(14) You are instructed that in this action there is no issue made or presented that the rules governing the operation of switch engines or transfer engines in the yards, of the Oregon Short Line were modified, changed, or abrogated in any manner or at all; and any evidence that may have been admitted in the case with reference to whether or not the Bio Grande Western switch engines had prior to the accident operated in the Oregon Short Line yards without being — 91 — equipped with white lights or a headlight on the rear of such engine, and in lieu thereof had used a red light, was not admitted for the purpose of proving or tending to prove any change, modification, or abrogation of the rule requiring switch engines to be equipped with a headlight on the rear of such engines, or, in the absence of such headlight, two white lights, and any such evidence must not be considered by you as proving or tending to prove any change, abrogation, or modification of such rule, because, as heretofore stated, there is no issue of that kind presented in this case.” It is further contended that respondent should as a matter of law be deemed guilty of contributory negligence because he left his position in the cab of the engine and went out upon the front of it, and failed to keep a proper lookout for his own safety, and for his alleged failure and neglect to observe the following rule of the Rio Grande Company which was in force at the time of the collision, namely: “All signals must be used directly in accordance with the rules; trainmen, engineers, and firemen must keep a constant lookout for signals.” The evidence shows that at the time the engine was stopped at the point where it was standing when the collision occurred the glass on the headlight was a “little smoky,” and the light was burning a “little dim,” and respondent left the cab and got onto the front of the engine and wiped off the glass. Respondent testified that after he had cleaned the glass and was in the act of climbing down' from the headlight to the ground, or about the time he reached the ground in front of the engine, the collision occurred. John A. Douglass, one of the switchmen, was called as a witness, and his testimony tended to show that the collision occurred either as respondent was climbing down from the headlight or immediately after he reached the ground. The fireman, however, testified that he, the two switchmen, and respondent were sitting on the pilot beam in front of the engine, and had been in that position for ten or fifteen minutes, when the accident occurred. J. W. Love, a witness for appellant, testified that he was a member of the switching crew who were operating the Short Line train at the time — 92 — of tbe collision; that he was about one hundred and twenty-five yards south of the Rio Grande engine when the accident occurred; that just before the collision he gave respondent and the other members of the Rio Grande switching crew signals “to come out of there — move forward with their engine.” He said, quoting him literally: “I gave come-ahead signals to them with my lantern. They apparently did not pay any attention to them, because .they did not move. So, I gave others. Then I whistled with my mouth to attract attention. That was a shrill, sharp' whistle. They would be able to hear it, but they paid no- attention apparently, because it (the engine) did not move.” He further testified that he went to the scene of the accident immediately after it occurred, saw respondent and the other members of the Rio Grande crew there, and spoke to them about the signals he had given them to move their engine onto another track. He said, again quoting: “I asked them if they saw the signals, and they said yes; and I asked them why they didn’t come out of there then, and they said they didn’t know who it was, and Hr. Gilbourne had said it might be Kelley, and, if it was, he could come down there if he wanted them.” On cross-examination he testified in part as follows: . “I certainly had in mind that Gilbourne’s engine standing there was in danger, for I always considered a man standing on the main line in danger. I wanted this engine out of the way, but they apparently did not observe or. pay any attention. I could not tell how far our train was away when I whistled. I don’t think there was any immediate danger at that time.” Gilbourne testified that he did not see the sig-' nals given by Love; that, if h¿ had seen them, he would have moved ahead with the engine. In view of the circumstances under which respondent left the cab and went to the front of the engine, we are not prepared to say that in doing so he was as a matter of law guilty of contributory negligence. We think this matter, and the 7 question as to whether he kept a proper lookout for signals and for approaching cars during the time the engine — 93 — was standing on the track where the collision occurred, were questions-of fact for the jury to determine. In regard to the use of a' red light on the rear of the engine on the night in question, instead of the kind of light required by the rules of the company, and the alleged -failure of respondent to keep a proper lookout for signals and for approaching cars during the time his engine was standing on the track before the collision occurred, the court instructed the jury in part as follows: “(12a) You are instructed that if you believe from the evidence that while the plaintiff’s engine was standing in the yard it had a red light burning on the tender end of the engine, and that this was the usual and customary manner of warning other trains approaching on the same track, or was all the warning that ordinary care required, and that it was sufficient to prevent other trains or cars being run against the plaintiff’s engine, if the persons operated them with ordinary care, then the plaintiff fully met the requirements of ordinary care on his part in this respect, and the fact that the plaintiff did not in addition Tceep a looTcout for approaching cars cannot avail the defendant nor in such circumstances mould the fact, if it he a fact, that plaintiff was sitting on the pilot of his engine, he any obstacle to his right to recover damages in this case.'” Appellant excepted to and assigns as error the giving of this, instruction. The court by giving that part of the instruction not italicized, in effect, told the jury that, if they found from the evidence that the installing and using of a red light on the rear of the engine was as efficient a method of protecting it as the kind of lights required by the rules, then, in that event, respondent did not commit a breach of any duty he owed the railroad company by substituting, a red light for the kind of lights required by the rules. Now, the rule is elementary that a master has a right to make 8 such reasonable rules and regulations as are necessary for the conduct of his business and the guidance and safety of his employees. In fact, in a complicated business such as railroading, in which a large number of persons are employed, and the safety of the employment, to a large — 94 — extent, depends upon each employee performing' Ms duties promptly and in a specified manner, it is tbe duty of tbe master to promulgate reasonable rules and regulations, wbicb, if observed by tbe servants, will give tbem reasonable protection from injury. (1 Labatt, Master and Servant, section 210; 26 Cyc. 1157, and cases cited in note.) And tbe law is equally well settled that tbe servant is under a corresponding duty to faithfully observe and comply with 9 all reasonable rules promulgated and fumisbed bim by tbe master for bis guidance and safety, and be cannot justify bimself in bis disobedience of a rule by showing that it was unnecessary, or that be adopted and followed some other method wbicb was equally as safe and as efficient as tbe rule promulgated and furnished bim by tbe master. (26 Cyc. 1161, 1270; Bailey’s Mast. Liab. to Serv., pp. 72-85.) Respondent concedes this to be tbe law, and cites, with approval, 1 Labatt, Mast, and Serv., section 367, wherein the author says: “Every breach of a rule represents a breach of a contractual obligation which has been either expressly assumed by the servant, or is implied by the fact of his having accepted or continued in the given employment with due notice of the existence of the rule. The servant’s agreement is that whatever may have been, apart from the rule, the standard of proper care, under the circumstances, the rule itself is to define that standard as between the servant and' his master, as long as the former remains at work. That this is really the prevailing view, even in the two states above mentioned (New York and Texas), is abundantly evident from numerous decisions in which recovery has been denied as a matter of law for the reason that the injury was caused by the violation of a rule.” Respondent insists, however, that tbis rule is binding only as between master and servant, and that it does not obtain in cases where tbe servant is injured by tbe act of a stranger. As stated by Mr. Labatt, tbe principle upon wbicb a servant is debarred from recovering damages from bis master where be has been injured because of bis failure to observe a rule of bis master is that tbe servant is under a contractual duty to obey Ms master, and bis failure to do so is held to be negligence. And tbe authorities seem to bold that, where a — 95 — servant has been injured while violating a rule of his master by the negligent act of a stranger to whom the servant owed no contractual duty and for whose benefit the rule was not made, such stranger cannot successfully resist the servant’s claim for damages by pleading the servant’s violation of the rule. But this is not that kind of a case. In the case at bar each of the railroad companies mentioned operated its trains, switch engines, and transferred cars from the yards of one company to the yards of the other under and in accordance with the “Standard Rules of the American Railway Association.” The rules of this association, so far as material here, were adopted by the two companies for their mutual benefit. And respondent, while operating his engine in the yards of the Short Line Company, owed the same duty to that company to observe the rules common to both companies to avoid injury to its property and employees as he owed to the Rio Grande Company in that respect. It is conceded that these rules, which were incorporated in and made a part of the rules of the Rio Grande Company, provided that switch engines should be equipped with either a headlight or two white lights on the tender end of such engines, and the evidence shows that respondent was familiar with these rules. In fact, he himself so testified. No claim was made, nor was there any evidence introduced to show, that the rules were unreasonable, or that they prescribed a negligent or dangerous method of doing the work. It was therefore the duty of respondent to faithfully observe the 10 rules, unless they had been habitually disobeyed in such manner and for such a length of time as to raise a presumption that the Rio Grande Company had notice of such habitual and continued disobedience, and that respondent was warranted in acting upon the assumption that the company had abrogated the rules. (1 Labatt, Master and Servant, section 232.) But in this case, as we have observed, the question of whether there had been any change, modification, or an abrogation of the rule under consideration was withdrawn by the giving of instruction fourteen. The withdrawal of that question from the jury, whether — 96 — right or wrong — a question we are not called upon to determine — narrowed this phase of the case to the simple proposition of whether or not the violation of the rule directly contributed to and was a proximate cause of the collision. It is further contended on behalf of appellant, and we think the contention is well founded, that the court, by giving that part of instruction 12a which we have 11 italicized, withdrew from the jury the defense of contributory negligence so far as it was based upon respondent’s act in leaving the cab and going to the front of the engine, and his failure to keep a lookout for approaching cars along the track upon which the engine was standing. By giving the italicized part of this instruction, appellant was deprived of whatever benefit it might otherwise have derived from the evidence tending to show that respondent, after cleaning the headlight of the engine, took and occupied a position on the pilot beam of his engine, and- that he failed to obey the signals given by the witness Love just prior to the collision for him to move forward with his engine, and that, after cleaning the glass of the headlight, he, together with other members of the crew, sat down on the pilot beam of the engine where they could not keep' a lookout to the rear of the engine for approaching cars from the north, and remained in that position anywhere from ten to fifteen minutes. This evidence, if believed by the jury, might have resulted in a verdict in favor of appellant, provided the issue in support of which it was admitted had not been withdrawn by the giving of the last-mentioned instruction. Furthermore, the court, in defining the degree of care and caution that the switching crew who' were operating the Short Line train at the time of the accident were legally bound to exercise to avoid a collision, charged the jury as follows: “(15) You are further instructed that it was the duty of the employees of the defendant company to run and manage the cars in question with such degree of diligence and caution in respect to speed and keeping a lookout ahead as was reasonably adequate to. prevent them colliding with other engines or ears standing in the yards. This was the duty of the — 97 — employees of the defendant company without regard to any rule of the company. If this duty was not observed the company was guilty of negligence. . . .” This 12 instruction, so far as it went, correctly defined the degree of care that the Short Line Company, acting through its agents and servants, was legally bound to exercise in operating its train on the occasion in question. And the switching crew of which respondent was a member were under a corresponding duty to exercise due care .for their own safety. The legal duties and obligations of the two switching crews in this respect were coextensive; that is, the same degree of care and diligence was demanded of each. Or, to state the proposition negatively, neither crew under the circumstances was bound to exercise a greater degree of care and diligence than could legally be required of the other. The court in defining the degree of care that the crew of the Short Line Company was bound to exercise to avoid a collision on the occasion in question stated the rule correctly. Moreover, respondent was an experienced locomotive engineer. He stopped and was holding his engine, upon a track along which he knew a train might pass at any moment. He was under all the authorities legally bound to use the same degree of care and caution that a prudent and cautious man skilled in the same kind of work would ordinarily use under the same or similar circumstances. The court by giving the italicized part of instruction 12a, not only invaded the province of the“jury by in effect charging that certain conduct of respondent, if shown to have transpired, was not negligence, but fixed a much lower standard or degree of care and caution for respondent to exercise when operating his engine in the yards of appellant than that required of him by law, and a lower and different standard of care than that prescribed by instruction fifteen for the Short Line Company. The giving of the italicized part of the instruction 12a was clearly prejudicial, as it deprived appellant of a substantial right. — 98 — The judgment is reversed, with directions ' to the trial court to grant a new trial, costs of this appeal to be taxed against respondent